The 2012 amendments to the Workers Compensation Act 1987 (NSW)
('the Act') controversially placed significant time
limitations upon claims for a range of statutory benefits, notably
including claims for medical treatment expenses and weekly payments
in relation to wage loss. Prior to these amendments injured workers
were free to make claims for medical treatment for an injury at any
stage in their lifetime. However, the amending legislation imposed
strict time limits with the exception of workers deemed to be in
the most seriously injured category. Following a parliamentary
inquiry, further amending legislation in 2015 introduced a number
of exceptions to such time limits, including treatment for the
provision of, amongst other matters, 'artificial aids',
leaving the question open as to what type of treatment falls within
the ambit of such a phrase.

Injuries to joints such as knees and hips often put in place a
degenerative process that may lead to the need for very expensive
joint replacement procedures, often decades after the original
injury. By this time, the time limits imposed by the legislation
may preclude a worker from claiming such costs. However, a recent
Presidential decision in Pacific National Pty Ltd v Baldacchino
[2018] NSWWCCPD 12, determined that a knee replacement procedure
does constitute the provision of an 'artificial aid',
thereby permitting injured workers to pursue claims for the costs
of such procedures unrestricted by time.

The facts

On 27 October 1999, Mr Baldacchino, a long-term employee in the
rail industry, sufered a twisting injury to his left knee while
alighting from a locomotive. In December of the same year, he
underwent arthroscopic surgery in the nature of meniscectomy. His
claim was accepted at the time and his treatment expenses were
paid, along with weekly compensation for his wage loss. In the
years that followed, the condition of his knee deteriorated. In
2014, his employment came to an end when he was made redundant.
Subsequently, in 2016 at age 65, he was referred by his GP to an
orthopaedic surgeon who recommended knee replacement. He then
notified Pacific National and sought approval in relation to the
surgery. Following a prolonged process of assessment of its
liability, Pacific National issued formal notification declining
liability on the basis that it did not consider the injury in 1999
to be responsible for the proposed surgery.

At First instance

The matter proceeded to determination before Arbitrator Harris
of the Workers Compensation Commission. An order was sought
directing Pacific National to pay for the costs of the procedure.
How-ever, Pacific National opposed the application, not only
disputing the causal connection to the injury but also with
reliance on the time limits imposed on the making of claims for
medical treatment expenses contained within s 59A of the Act.

Relevantly, s 59A provides that compensation is not payable in
relation to medical treatment that is provided beyond certain
prescribed periods following the injury: two years, if there is
less than 11 per cent whole person impairment; five years, if the
impairment falls between 11 per cent and 20 per cent; or unlimited
if above 20 per cent.

Alternatively, the same periods apply as from the last date that
weekly benefits for economic loss are paid or payable in relation
to the injury. However, the 2015 amendments to s 59A also contain a
number of exceptions within s 59A(6) in relation to which no time
limits will apply, including: '(a) the provision of crutches,
artificial members, eyes or teeth and other artificial aids or
spectacles (including hearing aids and hearing aid batteries)'.
It is also notable that s 59A provides a mechanism within
subsection (3) for the reopening of claims for treatment expenses
but this mechanism is limited to any subsequent period in which
weekly benefits again become payable. However, in this case Mr
Baldacchino, who by the time the proceedings were commenced had
reached age 66 (one year post-retirement age), was ineligible to
reopen his claim for weekly benefits and so gain the benefit of
this provision. The remaining avenue was the argument that a knee
replacement was an 'artificial aid' for the purposes of the
exceptions within subsection (6).

In his decision dated 9 October 2017, Arbitrator Harris made
findings, inter alia, that the surgery was reasonably necessary as
a result of the injury on 27 October 1999 and also that the
proposed surgery fell within the meaning of 'artificial
aid' within s 59A(6) of the Act. Accordingly, he issued an
order directing the Respondent Employer to pay the costs for the
provision of the procedure. In so finding, he relied upon an
earlier interpretation of a similar provision contained with-in the
Workers Compensation Act 1926 in Thomas v Ferguson Transformers Pty
Ltd [1979] 1 NSWLR 216. In that case, the Court of Appeal had
considered the meaning of 'artificial aid' insofar as it
might apply to the provision of modifications to a motor vehicle to
enable the vehicle to be driven by an injured worker who had lost
the use of his legs. The majority (Hutley JA and Hope JA) held that
an 'artificial aid' was 'anything that was specifically
constructed to enable the effects of the disability to be
overcome' and that '[t]he essential quality of an
artificial aid is that it is an aid specifically tailored to the
needs of a person'.

In arriving at his decision, Arbitrator Harris stated that he
was bound by the decision in Thomas and, in applying the principle,
concluded that a knee replacement procedure fell within the
definition because it was designed to overcome the effects of the
disability. Furthermore, in so deciding, he rejected a further
submission made by the respondent that an artificial aid was
something external to the body.

On appeal

Pacific National lodged an appeal, which was determined by
Deputy President Snell on the papers. In a surprising development
to practitioners, the regulatory authority, SIRA, intervened in
support of the decision of the arbitrator.

The appellant asserted two errors of law. Firstly, it was
submitted that the arbitrator should not have been bound by the
earlier authority in Thomas's case for the reason that in the
context of numerous legislative changes, the phrase 'artificial
aid' no longer had the same meaning as it had done some 38
years earlier.

In addressing the first ground, the Deputy President considered
the phrase in light of its use in successive legislative
amendments. He affirmed the approach of the arbitrator who had
relied on the principle enunciated by James LJ in Ex parte Campbell
(1870) LR5 Ch App 703: 'where certain words in an Act of
Parliament have received a judicial construction in one of the
Superior Courts, and Legislature has repeated them without any
alteration in a subsequent stat-ute, I conceive that the
Legislature must be taken to have used them according to the
meaning which a Court ... has given to them'.

He concluded that there was no evidence of any legislative
intention to alter the meaning of the 'plain words' from
its earlier interpretation in Thomas, irrespective of whether the
legislation was beneficial or non beneficial.

In its second ground, the appellant submitted that principles of
statutory interpretation including 'ejusdem generis',
restricted the scope of the phrase by the context of the
surrounding words within s 59A(6): 'crutches, artificial
members, eyes or teeth ...'. It argued that the context
restricts the term to aids that are external, visible and
accessible to the body. The Deputy President considered the
authorities in relation to 'ejusdem generis' noting that as
a starting point the Court must consider whether or not effect can
be given to the 'clear and unambiguous' meaning.

He rejected this further ground, concluding that the term did
indeed have such a clear meaning, this being the same as that
described in Thomas's case. Furthermore, he also determined
that even if the meaning were to be read by reference to the
context of the surrounding words, he did not consider the
subsection contained any common characteristic capable of being
described as a genus.

Accordingly, the appeal failed and the orders made by the
arbitrator were affirmed, thereby permitting Mr Baldacchino to
undergo a knee replacement.

Consequences

The 2012 amendments to the Workers Compensation legislation in
NSW have brought about many harsh consequences, particularly in
relation to the strict time limits that apply to the accessing of
benefits. The decision in Pacific National Pty Ltd v Baldacchino
represents some reprieve to injured workers, particularly to
retired workers, who would other-wise be unable to enforce rights
in relation to knee replacement procedures.

There appears to be very little doubt that the decision will
also have application to other joint replacement procedures,
notably hip replacements. The question as to what other devices
will be interpreted as falling within the definition will
inevitably become the subject of further litigation. However, the
expansive interpretation by the Commission in this matter appears
to impose very few limits.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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